The October sitting, week one: In Plain English

Posted Wed, October 12th, 2011 6:00 pm by Amy Howe

And they’re off! Last week the Court officially began its new Term with oral arguments in seven cases. I will discuss each of those cases in turn, but I want to start with the order list that the Court issued on Monday, October 3. The Court’s first order list of the Term is unusual because the Court doesn’t generally grant review in any new cases, but on the other hand we don’t expect any; on September 27, the Court had already granted review in seven new cases from its Conference the day before, and it hadn’t held a new Conference since then. Instead, this list was most interesting for the cases in which it denied review – including Williams v. Maryland and DeWeese v. ACLU, efforts to bring the issues of gun rights and the Ten Commandments, respectively, back before the Court – and for the five cases in which the Court called for the views of the Solicitor General.

The second scenario is commonly known as a “CVSG,” although those initials don’t appear anywhere on the order list. Instead, the Court will “invite the Solicitor General to file a brief expressing the views of the United States.” It isn’t a real “invitation” in the sense that the Solicitor General has a choice about whether to file the brief; the Court expects that it will do so. CVSGs usually come in cases that involve a federal statute or some other issue in which the federal government has an interest or expertise, but in which the United States is not already participating. When this happens, proceedings at the Court get put on hold. Both sides have the opportunity to argue to the Solicitor General to explain why it is in the best interest of the United States either to have review be granted (the petitioner, the side seeking Supreme Court review) or denied (the respondent, who is opposing review). Lawyers from the Solicitor General’s office, along with other lawyers from the federal government who may be interested in the case, hold back-to-back meetings with lawyers from both sides, giving them a chance to make their pitches. At some point, usually several months after the Court issues its “invitation,” the government will file a brief, and the case will go back to the Court – which generally gives considerable weight to the government’s recommendation.

The five CVSGs came in cases involving a variety of issues. In DirecTV v. Levin, a satellite television provider is challenging the constitutionality of an Ohio law that imposes greater taxes on it than on cable television companies doing business in that state, while in Sandy Creek Energy Associates v. Sierra Club the Solicitor General will weigh in on whether a court can issue an order requiring a power plan to use better technology after the construction of the plant has already started. Environmental concerns also are at the core of the third case, Pacific Merchant Shipping Association v. Goldstene – the shipping group argues that a California regulation requiring ships to use a particular kind of fuel when they are in or near California ports is unconstitutional. In Fein, Such, Kahn and Shepard P.C. v. Allen, the issue before the Solicitor General is the Fair Debt Collection Practices Act, a consumer protection law – specifically, whether letters by a debt collection agency to a debtor’s lawyer can serve as the basis for a lawsuit under the FDCPA. And finally, in Cook v. Rockwell International, the question before the Court (and, now, the Solicitor General) is whether federal or state law should be used in lawsuits seeking compensation for radiation contamination.

But with no new cases granted, the real focus of last week at the Court was the oral arguments. At first glance, Monday’s cases seem very different: first up was Douglas v. Independent Living of Southern California, a challenge to California’s Medicaid reimbursement rates, followed by Reynolds v. United States, a challenge to the federal sex offender law. However, a common question – one that often comes to the Court in one form or another – united the two cases: whether the challengers in each even had the right to bring their lawsuits.

Douglas came to the Court as a result of California’s efforts to save money by reducing the rates that it would pay to doctors and hospitals participating in Medicaid, a joint federal-state program that provides health care to the poor and disabled. These efforts prompted Medicaid patients and health-care providers to sue the state; the plaintiffs argue that the reimbursement rates would be so low that they would violate federal requirements that Medicaid payments at least be high enough to entice health-care providers to take on Medicaid patients.

The Court is not considering whether the rates are in fact too low. Rather, the question before it is one that comes to the Court relatively often in one form or another: whether the patients and providers have a right to go to court to challenge the rate cuts at all. In some cases, a plaintiff is able to go to court because Congress has included language in a federal law that specifically allows him to do so. But in this case, nothing in the Medicaid statute authorizes patients and health-care providers to sue. Instead, the patients and providers argue that they can sue under the Supremacy Clause of the Constitution, which provides that federal laws “are the supreme law of the land” and trump any conflicting state laws. They are opposed not only by California – which counters that only Congress can authorize lawsuits to enforce a federal law – but also by the federal government, which argues that because Medicaid is a unique collaboration between federal and state governments, private parties do not need to be able to sue to ensure that federal laws are not violated.

At oral argument, the Justices seemed skeptical of the private parties’ argument that they had a right to sue. And although some Justices appeared to agree with the federal government that there is no right to sue in Medicaid cases like this, others questioned whether private parties should ever be able to sue states to enforce federal laws – a right that almost everyone had (at least until Monday) regarded as well-established, dating back to the Court’s decision over a century ago in a case called Ex parte Young. A decision based on the narrower ground supported by the federal government would be disappointing for the plaintiffs, but a decision based on the second, broader ground would be a significant shift in the law.

The second case, Reynolds v. United States, is the most recent case requiring the Court to grapple with the Sex Offender Registration and Notification Act (SORNA), which Congress enacted in 2006. The law was designed to create a nationwide system to keep track of sex offenders, by requiring them to register with law enforcement officials (and keep that registration up to date) wherever they live and work. In doing so, Congress hoped to prevent a situation in which a sex offender convicted in one location could then move to another state, where neither police nor his new neighbors would be aware of his history. One thing that Congress didn’t say in SORNA, however, was whether the law applied “retroactively” – that is, whether it applies to offenders who were convicted before it was enacted. Instead, Congress authorized the Attorney General to make such a determination, and in 2007 he issued a rule that made all sex offenders, regardless of when they were convicted, subject to SORNA’s registration requirement.

In 2001, Billy Joe Reynolds was convicted of a sex crime in Missouri and served four years in prison. When he was released, he registered as a sex offender in Missouri, but he did not register with authorities in Pennsylvania when he moved there in 2007. Later that year, Reynolds was charged with violating SORNA’s registration requirements. He argued in the lower courts that the Attorney General’s rule determining that SORNA applied to him, although he had been convicted five years before it was enacted, was invalid because the Attorney General did not notify the public of the proposed rule and provide an opportunity to comment on the rule, as is normally required. The lower court refused to even consider his challenge, holding that he had no right to challenge the rule. In the end, as Steven Schwinn reports, it seems likely that the Court will rule in favor of the government. And either way, as the government itself had explained in urging the Court not to review the case in the first place, the Court’s decision is likely to apply to only a relatively small group of offenders.

On Tuesday, the Court heard a trio of cases that came to it because prisoners who are being held in state prisons are in federal court seeking a writ of habeas corpus. In Latin, “habeas corpus” means “you shall have the body”; a writ of habeas corpus is an order directing the warden of the prison – who is in theory the defendant in the case, even if she is acting on behalf of the state – to release the prisoner because he is being held in violation of the federal Constitution.

Maples v. Thomas was probably the highest-profile case of the week, but after Tuesday’s oral argument it also seemed possible that it could be the case that ultimately has the smallest impact on the law generally. Cory Maples is on death row in Alabama for killing two men. Maples is not arguing that he is innocent; he confessed to the murders in writing. What Maples wants to challenge is his death sentence. He argues that when the jury was considering whether he should be executed or instead spend the rest of his life in prison, his court-appointed lawyers were so bad that he was effectively deprived of his constitutional right to have a lawyer. The question before the Court is whether he will have the chance to make this argument before a federal court at all.

His problem? When he first challenged the constitutionality of his death sentence at the state level, Maples thought (as he later told courts) that he had “won the lottery” because he was represented by two lawyers from a prestigious New York law firm. Unfortunately for Maples, after his New York lawyers filed his brief in the state trial court but before the court issued a decision ruling against him, both of those lawyers left the firm for other jobs, without notifying the court. So when the court mailed the decision to the lawyers, the mailroom at the New York firm simply returned the unopened envelopes to the court (marked “Returned to Sender”). As a result, Maples missed his chance to appeal the court’s ruling, which in turn led federal courts to reject his constitutional claims on the ground that they were procedurally defaulted – that is, that he had not given state courts a chance to consider them.

The Court granted review last spring to consider whether the conduct of Maples’s New York lawyers and/or the Alabama state court (which simply put the unopened envelopes in a drawer, without making any additional effort to contact the attorneys) could be enough to excuse the missed deadline. Although many people think of death penalty cases as the kind of case on which the Justices are going to be closely divided, with Justice Anthony Kennedy holding the deciding vote, after last week’s oral argument there actually appeared to be a strong consensus (with only Justice Scalia and, perhaps, Justice Thomas dissenting) in favor of sending the case back to the lower courts to give Maples at least a shot at getting review of his constitutional claims. The challenge that the Court will face, however, is one that it encounters relatively often: how to craft a rule that will benefit Maples in this case without opening the door to all kinds of new, but less compelling, claims by other prisoners.

Next up on Tuesday was Martinez v. Ryan, another federal habeas case. For decades, it has been a given that a criminal defendant has a right to have a lawyer for his trial and, if necessary, an appeal from that trial. The petitioner in the case, Luis Martinez, had a court-appointed lawyer when he was tried on charges that he had sexually assaulted his stepdaughter. After he was found guilty, he was again represented by a (different) court-appointed lawyer for his appeal, which he ultimately lost. The same lawyer also – without notifying Martinez – filed a notice indicating that he would seek what is known as state post-conviction relief (essentially, the state version of habeas corpus). The problems were compounded when that lawyer (again, without telling Martinez) told the state court that she had not found any possible arguments that Martinez could make to have his conviction invalidated; Martinez then missed his window to submit his own arguments to the court.

Martinez tried a second time to seek post-conviction relief, arguing that his trial lawyer had failed to do his job. Moreover, he argued, he should not be penalized for not making this argument before (as in Maples, he had to argue that his “procedural default” was “excused”) because the lawyer who represented him on appeal and in his first post-conviction proceeding was also ineffective. The state courts rejected these arguments. The lower federal courts also ruled against him when he filed a petition for federal habeas corpus: the district court reasoned that because Martinez had no right to a lawyer for his state post-conviction proceedings, he had no right to an effective lawyer, and therefore there was no reason to excuse his previous failure to argue that his trial counsel was ineffective. The court of appeals affirmed, and the Supreme Court granted review.

In the Supreme Court, Martinez emphasized that he could not have raised his ineffective assistance of counsel claim until his state post-conviction proceeding. Therefore, his argument goes, the same rationale that is the basis for a defendant’s right to a lawyer for an initial appeal – that the appeal is his first chance to challenge the mistakes made at his trial – would apply for him in this case as well. The state, naturally, has a different take on the case: it argues (among other things) that earlier decisions by the Supreme Court make clear that there is no right to counsel in post-conviction proceedings; moreover, a ruling in favor of Martinez would be very expensive. As Steve Vladeck reported last week, at oral argument none of the Justices seemed to support a broad ruling that a defendant should get a court-appointed lawyer for post-conviction proceedings so that he can raise any claims that he could not raise before; whether they can agree on a narrower one that would still benefit Martinez remains to be seen.

Over forty years ago, in its landmark ruling in Miranda v. Arizona, the court held that statements made by a defendant in response to police questioning can be admitted at trial only if the defendant is informed that he has “a right to remain silent” and that anything he says “will be used against [him] in a court of law” . . . cue the Law & Order soundtrack here. However, Miranda only applies if the defendant is “in custody” – a requirement that gave rise to the third case on Tuesday, Howes v. Fields, in which the Court is considering whether a prisoner is “in custody” for Miranda purposes when he is isolated from the general prison population so that police can ask him questions about conduct that happened outside the prison.

The respondent in the case, Randall Fields, was in prison on disorderly conduct charges when he was brought to a conference room and questioned for seven hours – beginning at 7 p.m. – about sexual assault charges involving a minor. Fields was not informed of his Miranda rights. And although officers did tell him that he could leave the room at any time, they also told him that it might take a while for an officer to come to escort him back to his cell. Fields first denied that he had done anything wrong, but he eventually admitted that he had engaged in sexual conduct with the youth. Fields tried to keep his confession from being used against him at the trial that followed, arguing that he should have been given Miranda warnings. The state courts rejected his arguments, but the lower federal courts that reviewed his petition for a writ of habeas corpus agreed. At oral argument last week, the Court appeared divided, but Fields could ultimately face an uphill battle because of the special requirements of federal habeas cases: showing that the rule for which he is arguing is correct is not enough. Instead, he has to show that it is clearly established by the Court’s decisions – a difficult thing to do in most cases.

In Golan v. Holder, the first case argued on Wednesday, the Court was considering copyrights – the exclusive right to copy, distribute, or otherwise use an original creation, such as music, a book, a movie, or a play. In the United States, laws regulating copyrights have their origins in the Constitution, which authorizes Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” However, copyrights are not “international”: U.S. copyrights are only protected in other countries if those countries have entered into an agreement with the U.S., and vice-versa. To try to maximize this protection, the U.S. entered into a global trade pact, which took effect in this country after Congress enacted the Uruguay Round Agreements Act in 1994. [Disclosure: Goldstein & Russell, P.C., in which I am a partner, serves as co-counsel to the petitioners in the case.]

As relevant to this case, the URAA provides U.S. copyright protection to foreign copyright holders whose copyrights were still valid in their home countries, even if those copyrights were not previously recognized in the U.S. The practical effect of this new law was that perhaps millions of works which had been in the “public domain” – that is, not copyrighted and available for anyone to use – suddenly became copyrighted. This meant, for example, that conductors and orchestras that had these works (such as Prokofiev’s Peter and the Wolf) in their repertoires needed in some circumstances to pay substantially more money to perform the pieces. So some individuals and groups affected by the change sued the government, arguing that the law was invalid for two reasons: (1) it violated their First Amendment right to express themselves through the works; and (2) by taking works out of the public domain, Congress had violated the Copyright Clause.

Justice Elena Kagan did not participate in the case, because she had been involved in it in her previous role as the Solicitor General. That means that Lawrence Golan and the other plaintiffs will need to get five of the remaining eight Justices to vote in their favor. And although some Justices seemed sympathetic to their arguments – the Chief Justice, for example, found “something at least at an intuitive level appealing about . . . [the] First Amendment argument – it was far from clear after the oral argument that they would be able to do so.

The last argument of the week came in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case that has been described as one of the most important religious liberty cases in years. One of the parties to the case is Cheryl Perich, who began teaching at the Hosanna-Tabor Evangelical Lutheran Church School in Michigan. After a year or so on the job, Perich became a commissioned minister; she then continued to teach non-religious subjects such as math and science but also taught some religion courses and led her class in prayer. Perich became ill and went on disability leave, and she was later diagnosed with narcolepsy. Although she eventually attempted to return to work, she was fired. She then went to the Equal Employment Opportunity Commission to complain about her firing; the EEOC filed a lawsuit against the church, which Perich joined, alleging that her treatment at the hands of the church violated the Americans With Disabilities Act. [Disclosure: My firm filed an amicus brief in support of Perich in this case.]

To defend itself, the church argued that it couldn’t be sued all. It relied on a doctrine known as the “ministerial exception,” which exempts religious institutions from federal antidiscrimination laws for decisions that they make about hiring and firing their clergy. The idea behind this doctrine is that religious institutions need to be free to make such decisions, based on their own religious principles, without interference from courts. And there is a broad agreement that the exception applies to, for example, decisions about who can serve as priests or rabbis; I can’t sue the Catholic Church, for example, for requiring that priests be men. What is less clear, however, is whether and how the exception applies to other employees, such as Perich, particularly when they have both religious and non-religious duties.

At Wednesday’s oral argument, it became clear that the Court was facing problems similar to those it had faced the day before in Maples: how can it draft a rule that will ensure that employees with legitimate claims can go to court, but at the same time guarantee that those courts will not get tangled up in the hiring and firing decisions made by religious institutions – or, worse yet, in the nitty-gritty of those institutions’ religious beliefs? Here too, it was not at clear how the Court planned to balance these concerns.

The Court was back in session this week, hearing oral argument and adding two more cases to its docket. I will be back soon to discuss those cases, as well as today’s oral arguments, in Plain English.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.